O’Neill: We Need to Reform Law Enforcement’s Ability to Seize Civil Assets

USC football fans traveling to Notre Dame next year should drive cautiously: in Indiana, exceeding the speed limit by as little as 5 miles per hour can lead to police seizure of your car.

Thus said Thomas M. Fisher, Indiana’s Solicitor General, in a statement to the United States Supreme Court recently.

Fisher was speaking in the court on behalf of Indiana’s right to seize assets that may have been part of a crime. In Timbs v. Indiana, the Supreme Court will decide whether Indiana police acted lawfully when they seized a $42,000 Land Rover after the driver pled guilty to selling $225 worth of heroin to undercover police officers. During oral argument, one justice asked Fisher whether Indiana could seize a $1.5 million car if the driver was driving 5 miles per hour over the speed limit. Fisher responded: “Well, you know, the answer is yes.”

Such a cavalier – and unfortunately common – attitude toward private property helps explain why people of all political stripes have united against unfettered civil asset seizure. The Heritage Foundation and ACLU stand together in opposition to civil asset seizure, as do the Los Angeles Times editorial board and noted conservatives George Will and Steven Greenhut. Even well-read people will have a difficult time naming another issue that so unites men and women of such disparate political belief. Why, then, should we wait for courts to decide the issue for our communities?

There are times when civil asset seizure may be reasonable. Think of police who burst upon a scene where money, guns, and drugs sit on a table. If no one claims ownership (“Not mine, never seen it before”), then the property is forfeited. So long as the property is not forfeited coercively, civil liberties have been respected.

Civil asset seizure, though, presents real liberty concerns. At its core, two questions arise. First, should police be allowed to seize the property of a person not yet convicted of a crime? Second, if a person ultimately is convicted, can an asset lawfully be taken – no matter how big the asset or how small the crime?

The City of Newport Beach refused to wait for the courts when we enacted sweeping reform in early 2017. Newport Beach “recognizes the taking of property due to alleged criminal wrongdoing is entitled to the same legal protection as the taking of a person into custody for alleged criminal wrongdoing.” Consistent with the Fifth Amendment to the United States Constitution, Newport Beach “requires due process of law before a person be deprived of ‘life, liberty or property.’” These minimum standards should be adopted for every government employing a law enforcement agency.

In an era of sharp political divide, we must stand for reforms that recognize our country as “indivisible, with liberty and justice for all.” Reform of civil asset seizure is an issue that unites – or should unite – all Americans.

Will O’Neill is the Mayor Pro Tem of Newport Beach.

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